Government formation UK-style: a constitutional hiccup?

1. Did Gordon Brown potentially embarrass the Queen by resigning as caretaker Prime Minister before a formal deal had been settled between the Tories and the Lib-Dems?
2. As newly appointed Prime Minister, is David Cameron merely acting in a caretaker capacity - until a formal coalition agreement or arrangement on confidence is settled with the Lib-Dems?

Based on New Zealand's precedents and experience, the resignation and appointment seems somewhat premature. The Governor-General has made it clear that in order to appoint a new PM and government, "political parties [must] have reached an adequate accommodation, and a government is able to be formed or confirmed". In New Zealand, it is expected that parties will make that clear "by appropriate public announcements" and to provide the Governor-General with "sufficient information to be able to appoint a new Prime Minister". By custom, or perhaps even constitutional convention, the public announcement expected from political parties in New Zealand is either a joint statement confirming a coalition or confidence and supply agreement has been settled or public disclosure of those agreements. It is from these political compacts that the Governor-General is then able to ascertain which political groupings are able to "command the confidence of the House".

But do we have that in the UK now? No deal appears to have yet been settled, although a general outline of the type of arrangement has been foreshadowed. Is that enough for the Queen to be ascertain where the support of the House lies, with the requisite certainty? I'm not so sure. There's still a chance that negotiations about the form of the arrangement may break down.

However, Gordon Brown's immediate resignation forces the Queen's hand. The Monarch cannot be left without government advisors. A Prime Minister is needed. Hence the swift moves to appoint David Cameron. But, if - as I suggest - he has not yet demonstrated with certainty that he commands the confidence of the House, then he must only be (in NZ parlance) a caretaker Prime Minister. That is, legally installed in office, but subject to the constraints of the constitutional caretaker convention.

These subtleties make be lost on a UK audience, but I think it's fair to say that the New Zealand experience, customs and conventions would probably avoid such hiccups. The expectations in terms of signed political compacts, public statements, and public ceremonial appointment of the Prime Minister, along with acceptance of the caretaker convention mean we would be unlikely to get such a premature transfer of power.

While Brown had resigned, his resignation did not take effect till Cameron had kissed hands. This can be confirmed by Brown still riding in the PM limo, still reciving security detail until Cameron came along, and three when Brown left he received a general salute, as prime minister. (Cameron did not get such a salute until After he had been confirmed by Her Majesty the Queen).

As a result, Her Majesty was never without a advisor. Well thats my take anyway.

It would, I think, be wise not to get hung up on New Zealand precedent.

Whatever the apparent similarities in the UK and NZ systems, and however proud some of us are about the changes wrought after the crisis of 1984, we are fundamentally different.

A little knowledge of UK history would show that the Queen, indeed HM Queen Elizabeth II dg fd etc etc, once appointed a Prime Minister who wasn't even in the House of Commons, and barely had the majority support of his party. He had to be elected to the House before he could command its confidence!

Just as in 1963, in 2010 she followed the advice of the outgoing PM, and appointed his nominee.

Maybe the coalition will move towards the kiwi way of doing things, maybe the Cabinet Secretary will copy the Cabinet Manual idea over there. But that's for the future.

For now the UK precedent is clear. In cases of doubt, the outgoing PM advises HM who to appoint.

@Anon: I do think David Cameron and Nick Clegg look alike (they're almost the same age), but I don't think Dean looks like either of them

@Granny Morris: I think the difference comes from the result of the different electoral systems. Now I know you will yell that it shouldn't, that the principles apply regardless of the system used, but the reality is that it does. When Brown resigned, there really was only one other option - David Cameron. The numbers alone made that clear, with a Lab-Lib coalition (even if not led by Brown) not even having a majority and relying on Sein Fein not turning up, and a host of other parties either not voting or voting for it for confidence and supply. HM could have left Brown as caretaker PM until Cameron could come to her with a solid deal, although Brown had made it clear he was resigning with immediate effect. But in someways, the constitutionally premature decision had a positive effect. It effectively gave Cameron the upper hand and probably brought the coalition negotiations to a quicker end, which is something the public wanted and the economy needs. Basically Clegg was left with just a couple of options - a formal coalition, allow a minority government or defeat the government and result in new elections. It will certainly be interesting to see how the coalition works in practice.

1. Of course, the PM's resignation is technically deferred until the new PM's appointment. The Queen cannot be without advisors, albeit those in a caretaker capacity. But the substantive effect of Brown's resignation required the appointment of a new PM, before - I say - they had public demonstrated an unequivocal entitlement to govern.

2.My take on this, and the New Zealand precedents and experience on which I base it, is founded in the concept of democratic legitimacy. When a leader / PM can demonstrate the confidence of the House, they are entitled to be the Queen's responsible advisor. If they cannot, they must act only in a caretaker capacity (which, amongst other things requires them to demonstrate that any proposed action is supported by a majority of the House).

Based on this, NZ has - rightly in my view - rejected the notion that the outgoing PM advises the Queen of his or her replacement. Obviously, an outgoing PM lacks democratic legitimacy to do so - by definition they lack the confidence of the House which entitles them to so advise. The beauty of the NZ approach is that it puts the acid back on the parties to publicly and unequivocally demonstrate their entitlement to be responsible advisors / the government.

Trouble is Dean, you've grown up in the post 1984 world, now with MMP, where the concept of democratic legitimacy may mean more than a pretty slogan.

It means little in the UK's FPP world, where the last time a party scored more than 50% of the popular vote was 1931, and poor Stanley Baldwin didn't even get to be PM until 4 years later!

Who knows, we might find after the Queen's Speech on 25 May that Cameron and Clegg don't have the confidence of the House of Commons, at which point it'll be all on again for young and old, and we'll likely have FPP election No 2 in late June, with Cameron as a caretaker in the meantime.

On the substantive point, while Gordon Brown said he would resign as Labour leader on Monday, he did not resign as PM until Tuesday, when it was clear (to him at least) that the Clegg Cameron coalition had been agreed, and Clegg would keep his word (announced on TV the previous Friday morning), that the party with the largest share of the vote would get first crack at the Treasury Benches.

A far more interesting constitutional question is why they want a 55% majority for dissolution in a fixed term, and how they're going to handle a narrow loss on a vote of confidence.

I don't think their so called experts have yet got their heads around the brave new world that PR is going to bring. Certainly they seem to think right now that a loss of confidence must lead to a dissolution; I am not convinced it will in future.

Who knows, the next election might be in 2015, with parties lead by Theresa, Harriet and Lorely.

Course Outline

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.